Court of Appeals No. 03

- 14

- 00413

- CR Trial Court Cause No. 5797

IN THE THIRD SUPREME JUDICIAL DISTRICT

COURT OF APPEALS

AUSTIN, TEXAS

_______________________
PRISCILLA AGUILAR HERNANDEZ

v.

THE STATE OF TEXAS

_______________________
APPEALED FROM THE 452 ND JUDICIAL DISTRICT COURT,

MCCULLOCH COUNTY, TEXAS Honorable Robert R. Hofmann, Presiding

_____________________________________________________________
APPELLANT ’

S BRIEF

_____________________________________________________________ M. Patrick Maguire State Bar No. 24002515 M. Patrick Maguire, P.C. mpmlaw@ktc.com 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594

ATTORNEY FOR APPELLANT, PRISCILLA HERNANDEZ

ORAL ARGUMENT REQUESTED ACCEPTED 03-14-00413-CR 3588264 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/24/2014 10:35:08 AM JEFFREY D. KYLE

CLERK1 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL 2

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 6

ISSUES PRESENTED 7

SUMMARY OF THE ARGUMENTS 8

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 9

STATEMENT OF FACTS 1 0

ARGUMENTS & AUTHORITIES 10

ISSUE 1: The jury’s negative answer to the sudden passion issue in the trial court’s punishment charge i s against the great weight and preponderance of the evidence, i.e., factua lly insufficient. 1 3

ISSUE 2: The jury’s negative answer to the self

- defense issue in the trial court’s charge at the guilt/innocence stage of the trial is against the great weight and preponderance of the evidence, i.e., factually insufficient. 19

PRAYER FOR RELIEF 24

CERTIFICATE OF SERVICE 252 Court of Appeals No. 0 3

- 14

- 00 413

- CR Trial Court Cause No. 5797

IN THE THIRD SUPREME JUDICIAL DISTRICT

COURT OF APPEALS

AUSTIN , TEXAS

_______________________
PRISCILLA AGUILAR HERNANDEZ

v.

THE STATE OF TEXAS

_____________________________________________________________

IDENTITY OF PARTIES & COUNSEL

_____________________________________________________________ Appellant certif

ies that the following is a complete list of the p arties, attorneys, and any other person who has any interest in the outcome of this appeal:

Appellant: Priscilla Aguilar Hernandez

Appellee: The State of Texas

Attorney for Appellant: M. Patrick Maguire M. Patrick Maguire, P.C. 945 Barnett Street Kerrville, Texas 78028

Attorney for Appellee: Hon. Tonya Spaeth Ahlschwede 452 nd Judicial District Attorney P.O. Box 635 Mason, Texas 768563

Trial Judge: Hon. Robert R. Hofmann 452 nd Judicial District Judge P.O. Box 1580 Mason , Texas 7 68564 INDEX OF AUTHORITIES

CASES

De Leon v. State
, 373 S.W. 3 d 644 (Tex. App.

— San Antonio 2012, pet. ref ’ d) 13,14, 16,17

Meraz v. State
, 785 S.W. 2 d 146 (Tex . Crim. App. 1990 ) 14

Saxton v. State
, 804 S.W.2d 910 (Tex. Crim. App. 1991 ) 19,20, 23

Zuliani v. State
, 97 S.W. 3 d 589 (Tex. Crim. App. 2003 ) 19,20, 235 STATUTES AND RULES

Tex. Penal Code § 9.01 21

Tex. Penal Code § 9.31 21

Tex. Penal Code § 9.32 21

Tex. Penal Code § 19 .02 136 STATEMENT OF THE CASE

Appellant, Priscilla Aguilar Hernandez , is appealing h er conviction

for the offense of murder

. Appellant pled not guilty to a jury on May 20
,
2014. RR 3
, 12

. The jury found Appellant guilty and sentenced h er to 3 0

years confinement in the Texas Department of Criminal Justice

–

Institutional Division on May 23 , 2014. RR 6, 70

. Appellant timely filed

her notice of appeal in the trial court

. This brief is timely filed by being

electronically filed in the Third Cou rt of Appeals on December 24 , 2014

.7

APPELLANT'S ISSUES PRESENTED FOR REVIEW

I. The jury’s negative answer to the sudden passion issue in the trial court’s punishment charge i s against the great weight and preponderance of the evidence, i.e., factually insufficient

.
II. The jury’s negative answer to the self

- defense issue in the trial court’s charge at the guilt/innocence stage of the trial is against the great weight and preponderance of the evidence, i.e., factually insufficient.

** For purposes of reference in the Appellan t’ s Brief the following will be the style used in referring to the record:

1. Reference to any portion of the Court Reporter’s Statement of Facts will be denoted as “(RR____, ____),” representing volume and page number, respectively.

2. The Transcript containing the District Clerk’s recorded documents will be denoted as “(CR___, ___).”8 SUMMARY OF THE ARGUMENTS

I. The evidence is factually insufficient to support the jury’s negative finding on the sudden passion issue contained in the trial court’s charge on punishment.

II. The evidence is factually insufficient to support the jury’s rejection of Appellant’s self

- defense claim.9 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)( 3) of the Texas Rules of Appellate Procedure,

I certify that this brief contains 4,000 words (counting all parts of the

document and relying upon the word count feature in the software used to

draft this brief). The body text is in 14 point font and the footnote text is in

12 point font.

/s/ M. Patrick Maguire M. Patrick Maguire, Attorney for Appellant10 STATEMENT OF FACTS

On December 25, 2010, Appellant and her husband, Jimmie Joe
Hernandez (“Jimmie”), had been drinking heavily. RR 3, 91 ; RR 3, 194

. They, along with other family members, had been to a Christmas dance held

in Menard, Texas. 1 RR 3, 195. In the early morning hours of December 26,

2010, Appellant and Jimmie got into an argument over Appellant se eing

another man. RR 3, 195

- 96. Appellant left the dance with Jimmie’s parents

who drove Appellant to her house in Menard. RR 3, 196. Jimmie walked

home from the dance. RR 3, 196.

After arriving home, Appellant left the house to walk back and find

Jimmie. RR 3, 196

- 97. When she found him, the two got into a physical

altercation. RR 3, 197. Jimmie spit on Appellant’s face, broke her cell

phone, and somehow in the altercation, pulled one of her boots off. RR 3,

196

- 97. Appellant returned to the house. Appellant’s brother, Justin Stone,

was passed out on a sofa in the house. RR 3, 197. Mr. Stone’s girlfriend,
Staci Leach (also known as “Nellie”), was sleeping on the other sofa. RR 3,

96. Staci awoke to Appellant coming in the door with Jimmie following

right behind Appellant. RR 3, 96. Appellant woke Staci up and said that

Jimmie had hit her and Appellant was yelling at Jimmie because her boot

1 The offense occurred in Menard County, Texas. Venue was transferred to McCulloch County, Texas where the case was tried.11

was missing. RR 3, 96. Appellant also had spit on her eyebrow with a little

bit of blood in it. RR 3, 96. Staci asked Jimmie if Jimmie had hit Appellant
and Jimmie denied hitting her. RR 3, 96. Staci attempted to get Appellant’s

brother to wake up. RR 3, 96.

Meanwhile, Appellant and Jimmie were arguing in the kitchen (which
was directly adjacent to the living room where Staci and Appellant’s brother

were sleeping) and Appellant picked up a pan and struck Jimmie multiple

times in the head with it. RR 3, 96. A ccording to Staci, Appellant turned

and grabbed a handful of knives out of a drawer or on the counter. RR 3, 97.

The argument continued into the living room and Staci said that Appellant

threw one knife at Jimmie and it stuck in the floor. RR 3, 98. St aci said that

Jimmie picked the knife up by the blade, handed the knife back to Appellant,
and told Appellant, “you missed me, Bitch, try again.” RR 3, 98. Staci said

that Jimmie and Appellant were very close to one another and Appellant said

something t o Jimmie and when she turned around to walk away, Jimmie told
Appellant to “go fuck another kid.” RR 3, 98. At that point, Appellant

turned around and stabbed Jimmie in the chest. RR 3, 98

- 99. According to
Staci, Appellant then backed up and said “ha, Bitch.” RR 3, 99. Jimmie

then pulled the knife out of his chest and threw it on the ground and said12

“don’t call the cops.” RR 3, 100. Jimmie walked out the door and collapsed

outside on the edge of the street. RR 3, 100.

Appellant ran up to Jimmie and grabbed his arm, apparently trying to

get him up. RR 3, 101. Appellant was hysterical and saying she was sorry

over and over. RR 3, 124

- 25. Jimmie died shortly thereafter.13 ARGUMENTS & AUTHORITIES

I. The jury’s negative answer to the sudden passion issue in the trial court’s punishment charge is against the great weight and preponderance of the

evidence, i.e., factually insufficient.

A. Standard of Review

At the punishment phase of a trial, a defendant found guilty of murder

may raise the issue as to whether he caused the death under the immediate

influence of sudden passion arising from an adequate cause. See Tex. Penal

Code §19.02(d) . If the defendant proves the issue by a preponderance of the

evidence, the murder is reduced to a second degree f elony. Id . “Sudden
passion” means “passion directly caused by and arising out of provocation
by the individual killed.” Id. §19.02(a)(2) . “Adequate cause” means “cause

that would commonly produce a degree of anger, rage, resentment, or terror

in a pers on of ordinary temper, sufficient to render the mind incapable of

cool reflection.” Id. §19.02(a)(1)

. Sudden passion must arise at the time of the offense and cannot result

solely from former provocation. De Leon v. State , 373 S.W.3d 644, 650

(Tex. App.

— San Antonio 2012, pet. ref’d). Moreover, neither ordinary fear

nor anger alone is sufficient to establish sudden passion. Id . When a

defendant seeks appellate review of a failure to make a finding on which the

defendant has the burden of proof, like su dden passion, the appellate court14

must apply a factual sufficiency standard of review. Id . Accordingly, the

appellate court will review all of the evidence in a neutral light and
determine whether the jury’s failure to find sudden passion is so against t he

great weight and preponderance of the evidence as to be manifestly unjust.

Id . at 651. (citing Meraz v. State , 785 S.W.2d 146, 154

- 55 (Tex. Crim. App.

1990)).

B

. Analysis

I t was undisputed that Appellant and Jimmie were intoxicated and in

the midst of a very heated argument when Appellant stabbed Jimmie. In

cases where appellate co urts have upheld a jury finding rejecting the
“sudden passion” defense, there are typically fact s t o indicate some
reflection on the defendant’s part that showed some (even very brief)

premeditation that mitigate against a sudden passion finding. This could be

a statement or an action by the defendant. However, in this case, there are
no facts that indicate any premeditation on Appellant’s part.
Staci Leach’s testimony is crucial on this point. I t is apparent that

Staci was not a witness who was sympathetic to wards Appell ant. At one
point in Staci’s testimony, she refused to even look at Appellant when asked

to identify her. RR 3, 113

- 14. Staci’s testimony would have particular

weight on the sudden passion issue because, if anything, Staci would be15

more inclined to incriminate Appellant rather than support Appellant ’ s
sudden passion theory

.
Staci testified that when she awoke to Appellant and Jimmie fi ghting
, that Appellant was missing a boot and had Jimmie’s spit on her face. RR 3,

96. She testified that the fight escalated to the point that Appellant actually

hit Jimmie in the head with a saucepan and grabbed knives, throwing one of

them at Jimmie. RR 3, 96

- 9 8

.
The next part of Staci ’ s testimony is critical in determining whether
the jury’s verdict is against the great weight and preponderance of the

evidence. After having had a knife thrown at him, according to Staci,
Jimmie picked up the knife, handed it back to Appellant and said “ you

missed me Bitch
, try again .” RR 3, 98. At this point, Appellant had turned

away from Jimmie and was walking away when Jimmie said “go fuck

another kid.” RR 3, 98. This is apparently what provoked Appellant to spin

around and immediately stab Jimmie. RR 3, 98.
Appellant’s actions after the stabbing al so support the fact that

Appellant acted under the influence of sudden passion. Appellant became

hysterical, te lling Jimmie she was sorry and attempted to get Jimmie up by

pulling on his arm

. RR 3, 101. These are the actions of a person who acted

in a fit of rage and sudden passion , not of someone who planned or16

premeditated to kill someone with malice. The burden is that Appellant
“more likely than not” killed Jimmie while under the influence of sudden

passion. H owever, Appellant submits that the evidence shows at least by

clear and convincing evidence that the murder occurred as a result of sudden

passion.

Looking at the facts leading up to
, and right after
, the stabbing show

unquestionably that this was a crime that occurred as a result of sudden

passi on. This is even more apparent when studying the cases where
appellate courts have upheld a jury’s rejection of a sudden passion defense.

An example is the De Leon case cited herein

. I n affirm ing the jury’s
rejection of the defendant’s “sudden passion” argument, the Fourth Court of

Appeals noted that right before the defendant stabbed the victim, the

defendant told a bystander “well, now this one is going

– is going to pay

now . . . . [h]e’s a son of a bitch.” De Leon v. State , 373 S.W.3d 644, 651

(Tex. App.

— San Antonio 2012, pet. ref’d). The Fourth Court found this

statement to be an important fact in determining that the jury’s finding was

not so against the great weight and preponderance of the evidence to be

manifestly unjust. Id . This is typical of cases wher e the appellate court
affirms a jury’s rejection of a “sudden passion” defense. This sort of
evidence is lacking in Appellant’s case.17

In Appellant’s case, Appellant and Jimmie were in a heated argument

that had gotten physical. Although Staci says that Appellant was hitting

Jimmie with a sauce pan in the kitchen, there was also a physical altercation

that took place as reflected by Appellant missing her boot and having
Jimmie’s spit on her face. T here was clearly a mutual combat s ituation

where tempers flared and emotions were running extremely high. The
boiling point came when Jimmie told Appellant to “go fuck another kid” and

immediately Appellant spun around an d stabbed Jimmie in the chest.

Although Staci testified that Ap pellant said “ha, Bitch” immediately
afterward, Appellant’s and Jimmie’s actions after the stabbing reflect that

this is a classic case of sudden passion. It seemed that both realized what a
huge mistake had just been made as reflected by Appellant’s hyst eria and
Jimmie’s statements to Appellant immediately after the stabbing. The jury’s

finding is so against the great weight and preponderance of the evidence that

it is manifestly unjust. See De Leon , 373 S.W.3d at 651.

The most compelling evidence that w ould bear on the “sudden
passion” issue is Staci’s testimony and Appellant’s testimony. Staci was the

only eyewitness to the stabbing other than Appellant. While a jury is free to

accept or reject witness testimony and to determine the credibility of the

witnesses, there are simply no facts which justify a negative finding on18

Appellant’s “sudden passion” issue. Appellant’s case should properly have

been submitted to the jury as a second degree felony. If the jury accepted
the State’s evidence (which it apparently did) then it would have to have
made a “sudden passion” finding. Appellant was sentenced to a term of

confinement of thirty (30) years, which is 10 years more than she could have

received if this case had been properly deemed a second degree fe lony as a

result of a sudden passion finding.

There was only one stab wound as opposed to many. Staci testified
that Appellant said “ha Bitch , try again ” after stabbing Jimmie, but that she

immediately became hysterical after she realized that Jimmie was badly hurt.
Additionally, Appellant ran out to the street where she knelt by Jimmie’s

side pulling on his a rm attempting to get him up saying she was sorry over

and over. RR 3, 124. Jimmie’s reaction after being stabbed also lends itself

to the crime occurring while in the throes of sudden passion. Jimmie told

those around him not to call the cops. RR 3, 100. If this was a situat ion

involving premeditation, it would seem that Jimmie would not have reacted

in this way. Appellant also testified that Jimmie told Appellant to run as he

lay dying in an apparent reference to Jimmie seeking to protect Appellant’s

interest. RR 4, 209.19

Th e relationship between Appellant and Jimmie can best be

characterized as dysfunctional. Both Appellant and Jimmie were young and

caught up in drug and alcohol abuse. This was a tragic event for both

Jimmie and Appellant

. Although motive is not an element to the offense of

murder, it is certainly probative in determining whether the k illing occurred

as a result of sudden passion. The facts clearly show that this killing
occurred as a result of sudden passion. The jury’s rejection of Appellant’s

sudden passion defense is so against the great weight and preponderance of

the evidence as to be manifestly unjust.

I I. The jury’s negative answer to the self

- defense issue in the trial court’s charge at the guilt/innocence stage of the trial is against the great weight and preponderance of the evidence, i.e., factually insufficient.

A. Standard of Review

Texas law categorizes self

- defense as a defense, not an affirmative

defens e. Zuliani v. State , 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). To

support a defense like self

- defense, a defendant bears only a burden of

production, which requires him to produce some evidence in support of his

claim. Id .; Saxton v. State , 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).

Once the defendant produces such evidence, the burden shifts to the State,

and the State bears the burden of persuasion to disprove the raised defense.

Id . Unlike the defendant’s burden of production, the State’s burden of20

persuasion requires it to prove its case beyond a reasonable doubt. Id

. When a fact finder determines that a defendant is guilty, there is an implicit

finding rejecting any defensive theory raised by the defendant. Zuliani , 97

S.W.3d at 594; Saxton
, 804 S.W.2d at 914.

When a defendant challenges the le gal sufficiency of the evidence
supporting a jury’s implicit rejection of a defendant’s claim of self

- defense,
“we look not to whether the State presented evidence which refuted
appellant’s self

- defens e testimony, but rather we determine whether after

viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact would have found the essential elements of murder

beyond a reasonable doubt and also would have found aga inst appellant on

the self

- defense issue beyond a reasonable doubt.” Saxton , 804 S.W.2d at

914. When a defendant challenges the factual sufficiency of the evidence
supporting a jury’s implicit rejection of a defendant’s claim of self

- defense,

the appella te court reviews all the evidence in a neutral light and ask s
“whether the State’s evidence taken alone is too weak to support the finding

and whether the proof of guilt, although adequate if taken alone, is against

the great weight and preponderance of the evidence.” Zuliani , 97 S.W.3d at

595.21

A person is legally justified in using force against another person

when and to the degree he reasonably believes the force is immediately
necessary to protect himself against the other’s use or attempted use of

unl awful force. Tex. Penal Code §9.31(a)

. A person is legally justified in

using deadly force against another person when and to the degree: (1) he

would have been justified in using force as set out in section 9.31 of the

Texas Penal Code, (2) a reasonable person in his position would not have

retreated, and (3) he reasonably believed the use of deadly force was
immediately necessary to protect himself against the other person’s use or

attempted use of unlawful deadly force. Tex. Penal Code §9.32 . “Deadly

force” is force that is intended or kn own by the actor to cause, or in the

manner of its use or intended use is capable of causing, death or serious

bodily injury. Tex. Penal Code §9.01(3)

.

B. Analysis

The evidence reflected that in the hours leading up to the stabbing,

Appellant and Jimmie were intoxicated and that they had been arguing and

fighting. Ermalinda Duarte testified for the defense. Ermalinda was the

mother of Mikey Lopez, the young man that Appellant was having an affair

with. Ermalinda testified that Jimmie called her around 2:45 a.m. on the

morning of December 26, 2010 and that Jimmie was very angry and cussing.22

RR 4, 134. Jimmie told Ermalinda that he wanted to kill her son, Mikey.

RR 4, 136

- 37. Ermalinda said that Jimmie sounded like he was intoxicated.

RR 4, 135. Ermalin da also testified that around 5 or 6 p.m. on December 26,

2010, she saw that Appellant had swelling on her cheek and the beginning of

a black eye. RR 4, 160. Ermalinda also testified that she was aware that

Jimmie physically abused Appellant in the past

. RR 4, 138. This is
consistent with the testimony of Appellant’s mother, who testified that

Jimmie physically abused Appellant. RR 4, 167

- 68.

According to Ermalinda, Staci Leach told her that Jimmie had thrown

a knife at Appellant and that it had st uck in the floor and that Appellant was

trying to get away from Jimmie. RR 4, 158.

Appellant testified in her own defense. She testified that there was a

history of family violence in the relationship with her and Jimmie. RR 4,

193

- 95. Appellant described the events leading up to the stabbing and said

that she was trying to get Jimmie out of her house and that she stabbed him

in fear that she was about to be seriously hurt. RR 4, 205

- 07.

Dr. Lisa Watts, a psychologist who evaluated Appellant and reviewed

the facts of the case, testified that Appellant suffered from post

- traumatic

stress disorder. RR 4, 256. Dr. Watts also testified that based upon her

diagnosis of Appellant and her evaluation of the case history that she did not23

believe that Ap pellant intended to kill Jimmie. RR 4, 265. It was Dr. Watts’

opinion that Appellant acted in fear for her life. RR 4, 268.

It must be remembered that in conducting the analysis in this case, the

Court must not look to whether the State presented evidence which refuted
Appellant’s self

- defense evidence, but rather after viewing all the evidence

in the light most favorable to th e prosecution, any rational trier of fact would

have found the essential elements of murder beyond a reasonable doubt and

also would have found against appellant on the self

- defense issue beyond a

reasonable doubt. Saxton , 804 S.W.2d at 914. Appellant wo uld focus this
court’s attention on the facet of the analysis that reviews whether any

rational trier of fact would have found against A ppellant on the self

- defense

issue beyond a reasonable doubt. Unlike the defendant’s burden of
production, the State’ s burden of persuasion requires it to prove its case

beyond a reasonable doubt. Zuliani v. State , 97 S.W.3d 589, 594 (Tex.

Crim. App. 2003).

Based upon the evidence submitted, it cannot be said that a jury could

find against Appellant on the self

- defense issue beyond a reasonable doubt

. To support such a finding, the jury would have to reject the testimony of

Staci Leach, Dr. Watts and virtually every other witness who testified. If a

jury were to reject this testimony, then it would also follow that th e jury24

must reject the testimony of these witnesses concerning how the homicide

occurred

. While a jury is free to accept or reject evidence presented at trial,

given the burden of proof applicable to the self

- defense, the jury’s rejection

of self

- defense in Appellant’s case is not a tenable conclusion to be reached

from the evidence presented.

C ONCLUSION

Based on the foregoing argument and authorities, Appellant

respectfully submits that Appellant’s conviction for murder should be

reversed and th e cause remanded to the trial court for a new trial

.
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court sustain the appellate contentions here in,

reverse the judgment of the trial court convicting Appellant of murder and

remand this cause to the trial court

.25 Respectfully submitted,

M. PATRICK MAGUIRE, P.C.

/s/ M. Patrick Maguire M. Patrick Maguire State Bar No. 24002515 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895

- 2590 Facsimile (830) 895

- 2594

ATTORNEY FOR APPELLANT, PRISCILLA HERNANDEZ

CERTIFICATE OF SERVICE

I hereby certify that I have served a true and correct copy of Appellant's Brief to counsel for the State, Hon. Tonya Spaeth Ahlschwede, vi a electronic transmission at tsa@452da.net
, and whose address is P.O. Box 635, Mason Texas 76856 , on this the 24 th day of December , 201 4

.

/s/ M. Patrick Maguire M. Patrick Maguire